WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Compagnie Daher v. ICS Inc.
Case No. D2013-1425
1. The Parties
The Complainant is Compagnie Daher of Marseille, France, represented by INSCRIPTA, France.
The Respondent is ICS Inc. of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name is <wwwdaher.com> and it is registered with Tucows Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 12, 2013. On August 13, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 13, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 20, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 9, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 25, 2013.
The Center appointed Rodrigo Velasco Santelices as the sole panelist in this matter on September 25, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant is a tier 1 supplier to high-technology industries, specialized in three sectors: Aerospace & Defense, Nuclear & Energy and Capital Goods.
The Complainant is the owner of the trademark DAHER, it is also the owner of numerous trademark registrations worldwide, a list of which is provided as annex 7 of the Complaint.
The Complainant is the owner of over 50 different domain names that incorporate the term “daher”, among them the domain name <daher.com>.
The disputed domain name was registered on March 17, 2013.
5. Parties’ Contentions
The Complainant states that the disputed domain name is almost identical or at least confusingly similar to the DAHER trademarks and to the DAHER domain names in which the Complainant has rights; the addition of the three letters "www" at the beginning of the disputed domain name, which stand for "world wide web", is not sufficient to avoid any likelihood of confusion with the Complainant's trademarks.
The Complainant also states that the Respondent was using a privacy shield that made it complicated to be contacted and hold it responsible for its actions; because of the difficulties associated with privacy shields and the lack of plausible justifications for a “pay-per-click” parking website, it may be concluded that a pay-per-click parking website's decision to use a privacy shield likely will support inferences that the registrant registered and used the disputed domain name in bad faith.
Furthermore the Complainant states that such a use may be seen as a positive indicator of the fact that the registrant has no rights or legitimate interests in the disputed domain name.
The Complainant adds that the disputed domain name was registered after the Complainant's trademarks DAHER were filed and registered, and after the Complainant's domain name <daher.com> was registered; the disputed domain name is for sale, as can be verified with the copy of the printout of the website provided as Annex 5-1 to the Complaint.
Finally the Complainant states that the Respondent by using the disputed domain name in connection with a "domain name parking" or "pay-per-click" service hosting advertisements for some of the Complainant’s competitors and to competing services in the fields of aerospace, aircraft and aeronautics, the Respondent is indubitably attracting, for commercial gain, Internet users to his/her website and on-line location, by creating a likelihood of confusion with the Complainant's trademarks and domain names (such as <daher.com>) as to the source, sponsorship, affiliation, or endorsement of his/her website.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires that a complainant prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) that the disputed domain name registered by the respondent is identical or confusingly similar to a trade mark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
This first element requires that the Complainant demonstrates that (1) it has trademark rights and (2) the disputed domain name is identical or similar to a trademark in which the Complainant has rights.
The Panel finds that the Complainant has established that it is the owner of the registered trademark DAHER based on the evidence provided by the Complainant (annex 7).
The disputed domain name consists of the trademark DAHER plus the addition of the letters “www”. The Panel considers that the addition of the letters “www”, acronym for “World Wide Web”, does not add distinctiveness to the disputed domain name, but quite the contrary, simple creates further confusion with the Complainant’s trademark and existing domain names. The addition of the letters “www” and “.com” are insignificant.
The Panel therefore finds that the disputed domain name is practically identical to the Complainant’s trademark.
B. Rights or Legitimate Interests
The second element requires the Complainant to prove that the Respondent has no rights or legitimate interests in respect of the disputed domain name in question.
By the terms used in paragraph 4(a) of the Policy it is clear that the overall burden of proof is on the Complainant, however the Policy provides the Respondent means to demonstrate its rights to and legitimate interests in the disputed domain name in responding to the Complaint. If the Respondent does not make use of these means and the Complainant has established a prima facie case under sub paragraph 4(a)(ii), the burden is shifted to the Respondent to prove the contrary.
The Complainant asserts that the Respondent does not have rights or legitimate interests in the disputed domain name. The Complainant sent to the Respondent in various occasions a cease and desist letter indicating its previous rights and therefore granting the Respondent the opportunity to indicate its rights and or legitimate interest in the disputed domain name, however no response was provided (Annex 4 to the Complaint).
The Respondent has not provided a response to the allegations set forth by the Complainant, though given the opportunity during this current proceeding.
There is no evidence in the case file demonstrating that the Respondent might have rights or legitimate interest in the disputed domain name.
In the absence of a Response this Administrative Panel is satisfied that the Complainant has satisfied the second element, Paragraph 4(a) of the Policy and has established a prima facie case that the Respondent has no rights or legitimate interest in the disputed domain name.
C. Registered and Used in Bad Faith
This third element requires that the Complainant demonstrates that (1) the disputed domain name has been registered in bad faith and (2) is being used in bad faith.
Paragraph 4(b) of the Policy sets out a non-exhaustive list of circumstances which if found by the Panel to be present shall be evidence of the registration and use of a domain name in bad faith.
The Complainant is known as “Compagnie Daher”. It is the owner of the trademark DAHER. Furthermore, evidence provided by Complainant shows that it is the owner of several domain names which include the mention DAHER, to the knowledge of this Panel the term “daher” has no meaning in any specific language, consequently, it is rather impossible to believe that the election of a domain name with the mention DAHER is a mere coincidence. As a result one can reasonably conclude that the Respondent had knowledge of the existence of the Complainants’ trademark, being the aforementioned sufficient evidence to conclude that the Respondent was in all likelihood well aware of the Complainant’s trademark and wanted to refer to the Complainant.
After personally reviewing the website, on Wednesday, September 25, 2013, the Panel considers that Respondent’s objective registering the disputed domain name <wwwdaher.com> is to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of the services provided on the website and more particularly to generate revenue by directing Internet users to the website. One can easily draw this conclusion, taking into consideration the use given to the website, as a parking page hosting advertisements for some of the Complainants' competitors and to competing services in the fields of aerospace, aircraft and aeronautics; each time an Internet user visits the Respondent's website and clicks on one of the advertised hyperlinks, the Respondent receives payment for such links.
This behavior constitutes bad faith registration and use and may tarnish the Complainant’s reputation by, among other things, attracting Internet users to a webpage that does not correspond to what they are looking for, and allows the Internet user to link to competitors’ sites or competing services.
Finally, as evidenced by the Complainant, it sent in several occasions a cease-and-desist letter to the Respondent requesting the transfer of the disputed domain name and to cease use of its trademark. However, to date the Respondent has not removed such mention and remains using the trademark of the Complainant, in circumstances in which the Complainant has clearly stated that they have never given the Respondent authorization to use such trademark.
Accordingly, for all the foregoing reasons, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <wwwdaher.com> be transferred to the Complainant.
Rodrigo Velasco Santelices
Date: October 9, 2013